In re J.H.

Supreme Court of West Virginia

September 5, 2017

In re: J.H.

Kanawha
County 16-JA-507

MEMORANDUM DECISION

Petitioner
Father C.H., by counsel Michael M. Cary, appeals the Circuit
Court of Kanawha County's January 23, 2017, order
terminating his parental rights to J.H.[1] The West Virginia
Department of Health and Human Resources ("DHHR"),
by counsel S.L. Evans, filed a response in support of the
circuit court's order. The guardian ad litem
("guardian"), Jennifer N. Taylor, filed a response
on behalf of the child in support of the circuit court's
order. On appeal, petitioner argues that the circuit court
erred in denying him an improvement period.[2]

This
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.

After
receiving a referral that infant J.H. tested positive for
opiates, methamphetamine, hydrocodone, roxicodone, oxycodone,
and THC at birth, in September of 2016 the DHHR filed an
abuse and neglect petition against petitioner and J.H.'s
mother. In the petition, the DHHR alleged that the infant
tested positive for several illegal substances at birth, a
history of domestic violence between petitioner and the
mother, and that petitioner failed to properly supervise his
child. The DHHR further alleged that petitioner's home
was extremely dirty and that he failed to provide the child
with food, housing, and clothing.

Petitioner
waived his preliminary hearing. Thereafter, the circuit court
ordered both petitioner and the mother to be screened for the
presence of illegal drugs. Petitioner admitted to use of
Suboxone, but also tested positive for OxyContin and THC.
Further, the circuit court ordered the DHHR to provide
services to petitioner, including inpatient and outpatient
rehabilitation services, parenting and adult life skills
classes, domestic violence counseling classes, and bus
passes. The circuit court also granted petitioner a
preadjudicatory improvement period and ordered him to
participate in the services offered by the DHHR and to be
subject to random drug screens.

At the
November of 2016 adjudicatory hearing, the evidence showed
that petitioner tested positive for THC, methamphetamine,
oxycodone, and buprenorphine. A Child Protective Services
("CPS") worker testified that petitioner failed to
complete a series of safety plans instituted before the abuse
and neglect petition was filed. CPS implemented these plans
to resolve issues concerning the cleanliness of the home and
a lack of utilities. Ultimately, the circuit court found that
petitioner abused and neglected the child based on his drug
use and history of domestic violence.

At the
dispositional hearing, a CPS worker testified that both
parents had participated in their services "to a certain
point . . . oftentimes where they participated just enough to
get by and then other times that they wouldn't . . . keep
their appointments." The circuit court further found
that petitioner continued to use illicit drugs throughout the
proceedings and failed to take advantage of other services.
Moreover, the circuit court found that petitioner failed to
show any substantial improvement and that there was no
likelihood that he would ever improve. By final order entered
on January 23, 2017, the circuit court terminated
petitioner's parental rights.[3] It is from the
dispositional order that petitioner appeals.

The
Court has previously established the following standard of
review:

"Although conclusions of law reached by a circuit court
are subject to de novo review, when an action, such
as an abuse and neglect case, is tried upon the facts without
a jury, the circuit court shall make a determination based
upon the evidence and shall make findings of fact and
conclusions of law as to whether such child is abused or
neglected. These findings shall not be set aside by a
reviewing court unless clearly erroneous. A finding is
clearly erroneous when, although there is evidence to support
the finding, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake has
been committed. However, a reviewing court may not overturn a
finding simply because it would have decided the case
differently, and it must affirm a finding if the circuit
court's account of the evidence is plausible in light of
the record viewed in its entirety." Syl. Pt. 1, In
Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d
177 (1996).

On
appeal, petitioner argues that the circuit court erred by not
granting him an improvement period. However, the record on
appeal indicates that petitioner was granted a
preadjudicatory improvement period in October of 2016, and
thus, was already granted the relief he now seeks on appeal.
Because the relief petitioner seeks is unclear, we will
address two possible arguments that require the use of two
different standards. We believe petitioner is arguing that he
should have been granted an extension of his preadjudicatory
improvement period, or, alternatively, that he should have
been granted an additional improvement period. We find no
merit to either possible argument.

According
to West Virginia Code § 49-4-610(6), a circuit court may
extend an improvement period when, among other factors,
"the court finds that the [parent] has substantially
complied with the terms of the improvement period . . .
." As set forth above, petitioner failed to comply with
the terms of his preadjudicatory improvement period. The
record shows that petitioner did not attend all parenting
classes, failed all of his drug screens throughout the
proceedings, and failed to take advantage of other services.
Therefore petitioner was not entitled to an extension of his
preadjudicatory improvement period.

Further,
West Virginia Code §§ 49-4-610(2)(D) and (3)(D)
provide that a circuit court may grant a parent an additional
improvement period following adjudication or at disposition
if, "the [parent] demonstrates that since the initial
improvement period, the [parent] has experienced a
substantial change in circumstances. Further, the [parent]
shall demonstrate that due to that change in circumstances,
the [parent] is likely to fully participate in the
improvement period . . . ." Also, we have often noted
that the decision to grant or deny an improvement period
rests in the sound discretion of the circuit court. See
In re: M.M., 236 W.Va. 108, 778 S.E.2d 338 (2015)
(stating that "West Virginia law allows the circuit
court discretion in deciding whether to grant a parent an
improvement period"); Syl. Pt. 6, in part, In re
Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996) (holding
"[i]t is within the court's discretion to grant an
improvement period within the applicable statutory
requirements").

Here,
petitioner failed to satisfy the applicable burdens to
receive a new improvement period because nothing in the
record indicates that he filed a motion for a
post-adjudicatory improvement period or post-dispositional
improvement period. Further, other than his assertion that he
"tried to participate" in the services ordered by
the circuit court, petitioner did not present any evidence to
show that he was likely to fully participate in an additional
improvement period. The record is also clear that petitioner
did not establish a substantial change in circumstances since
his preadjudicatory improvement period. As stated above,
petitioner failed all of his drug tests throughout the
proceedings. Additionally, a CPS worker testified that
petitioner failed to make any progress in his parenting and
adult life skills classes. Petitioner's failure to comply
with the terms and conditions of his preadjudicatory
improvement period demonstrated that he was ...

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